Here is a question I’ve never thought about before: Are lawyers citing the best cases to courts? In other words, do the courts use the cases cited in the briefs, and how often do the courts use cases not mentioned in any brief? The answer may surprise you!
“This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.
